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ELCStruck OutELC Miscellaneous Application dated 30th November, 2023 (Machakos)· [2024] KEELC 5970 (KLR)

Ngingo t/a Muchangi Nduati & Co Advocates v Ndege & 2 others (Environment and Land Miscellaneous Application E034 of 2023) [2024] KEELC 5970 (KLR)

Environment and Land Court of Kenya
16 September 2024
COChristine Ochieng
632 words in judgment
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The bottom line

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The court struck out a lawyer's challenge to a taxation order because he failed to attach the ruling, bill of costs, or affidavit evidence.

What this practically means

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Executive summary

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The Applicant advocate filed a Notice of Motion dated 30th November 2023 under Rule 11 of the Advocates Remuneration Order and Order 51 Rule 4 of the Civil Procedure Rules seeking to set aside a Taxation Order made on 22nd November 2023 and to have the instructions fees on his Bill of Costs dated 6th May 2022 retaxed, alleging that the Taxing Officer committed a deliberate misdirection and grave error in principle by taxing instructions fees at over Kshs. 360,000 despite the value of the subject land being defined in sale agreements. The Respondents, through a Replying Affidavit sworn by Manwah Bwosiemo Magara, opposed the application as incompetent and vexatious, contending the advocate did little work, ignored Mpesa payments made, and had filed duplicative and defective miscellaneous causes whose rulings did not correspond to the certificate of taxation relied upon. The application was canvassed by written submissions. The court framed a single issue: whether the application was merited. It found the reference fatally incomplete: the applicant neither annexed the impugned Taxing Officer's ruling nor the challenged Bill of Costs, nor explained by affidavit how the Taxing Officer erred in principle. Holding that it was incumbent on the applicant to place all materials before the Court, the judge found the application incompetent and struck it out, making no order as to costs. The court did not disturb or review the underlying taxation decision.

Key legal issues

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01

Whether the reference under Rule 11 of the Advocates Remuneration Order was properly before the Court

Holding

The application was incompetent as it was incomplete; the applicant failed to annex the Taxing Officer's ruling and Bill of Costs and did not explain by affidavit the alleged error in principle

Reasoning

The court noted the absence of the impugned ruling and the Bill of Costs, and the absence of any affidavit explanation of the alleged error in principle. Without these materials the Court could not make a proper determination. The reference was therefore struck out with no order as to costs.

p. 2

Legal principles established

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  • An applicant bringing a reference under Rule 11 of the Advocates Remuneration Order must present all materials, including the impugned ruling and the Bill of Costs, and explain the alleged error in principle by affidavit

Court orders

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  1. 1.The Notice of Motion Application dated November 30, 2023 is struck out
  2. 2.No order as to costs
Jurisdiction invoked
Rule 11 of the Advocates Remuneration Order and Order 51 Rule 4 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ngingo t/a Muchangi Nduati & Co Advocates v Ndege & 2 others (Environment and Land Miscellaneous Application E034 of 2023) [2024] KEELC 5970 (KLR)", Case Analysis (2024). ELC Miscellaneous Application dated 30th November, 2023 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5970/eng@2024-09-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.